In this issue

Do Not Disturb

In
last autumn's movie, A Fond Kiss, a nearly-divorced teacher at a
Catholic school is sacked for setting up house with her Muslim
boyfriend. Unfair dismissal? Let's look at what the courts say.

It is well established that conduct outside work can be
justification for dismissal. However, there has to be a reasonable
belief that it is causing problems in the workplace, or that it
certainly will do.

For example, a teacher who grew cannabis in his garden was held to
be lawfully dismissed because he taught teenage pupils on a daily basis.

A common issue for schools is the extra-marital relationship. There
have been two law cases of dismissal which involved extra-marital
relations. Both involved Roman Catholic schools.

One, an Irish case, involved a teacher who had become pregnant by a
local business man who had left his wife and set up home with her.

Since the school and the participants were all located in a small
town, the court took the view that this would damage the work that the
school was attempting to do in infusing Catholic values into its pupils.

The other case involved a religious education teacher who had become pregnant by the local parish priest.

Judgement was given on the very narrow grounds that she had been
dismissed "on account of her pregnancy". The issue of dismissal for her
conduct was not addressed.

New legal challenges

However, times might be changing. Both of the above cases were
decided before the 1998 Human Rights Act, which guarantees respect for
private life.

Under the act, challenges have been made to the right of employers
to act on conduct outside work. So far, such challenges have had
limited success.

The courts have barely started to explore these issues but cases so
far have made it quite clear that they regard sexual conduct in
private, or managed discreetly, as private for the purposes of the
Human Rights Act.

The question remains to be argued as to whether, when a teacher has
a particular teaching responsibility, for example religious education
in a church school, his or her conduct must bear witness to all the
values he or she is teaching.

Under the School Standards and Framework Act 1998, schools of
religious character do have the right "to have regard to any conduct
which is incompatible with the precepts, or with the upholding of the
tenets, of the religion or religious denomination so specified...in
connection with the termination of employment." This also has been
extended to independent schools.

This has not yet been tested in court, so it is not clear whether it
refers only to dismissal or whether it can include other disciplinary
acts. It also has to be established what conduct, which tenets and
whether behaviour that is 'private' is included.

It is likely that the circumstances of each case will be decisive.
For example, in the Irish case, the fact that the affair took place in
a small town was a significant factor.

Had it occurred in London, and had the two participants lived in a
different part of the city so that pupils would have been unlikely to
find out, the result might well have been different.

Making the case

To have a strong chance in an employment tribunal a school should have a clear and consistent policy.

For example, one would expect that the personal relationships course
in the school would actively promote a view that sexual relationships
should only take place within marriage.

There would also be an explicit staff code of conduct which drew
attention to the need to behave in a way that supported this belief.

In the absence of such an explicit policy, it might be difficult to
make out a case for saying that a staff member had breached any
specific or general prohibition on extra-marital affairs or that such
an affair would be damaging to the work of the school or contrary to
the tenets of the religion.

In short, any head becoming aware of an extra-marital affair must
act with extreme circumspection and needs to have care that an action
does not precipitate a constructive dismissal.

A teacher behaving in a way out of school that impacts on a school cannot simply say, "That's my business; keep your nose out."

Conversely, the school must be sure that the conduct is not private
and does impact on the school before taking disciplinary action.